The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its replacement, met this day at 9:30 a.m. to give consideration to the bill. Senator Dennis Glen Patterson (Chair) in the chair.

The Chair: Good morning, colleagues. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in this room or via CPAC on the web. I am Dennis Patterson from Nunavut.

Our mandate is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. This morning, we will continue our study of Bill C428, An Act to amend the Indian Act (publication of bylaws) and to provide for its replacement. We will hear from four witnesses: the Assembly of First Nations; Mr. Guy Lonechild; the Congress of Aboriginal Peoples; and the First Nations Tax Commission.Before proceeding to the testimony, I would like to go around the table and ask members of the committee to introduce themselves.Senator Moore: Good morning. I’m Wilfred Moore from Nova Scotia. Senator Raine: Good morning. I’m Senator Nancy Greene Raine from B.C.Senator Watt: Charlie Watt from Nunavik.Senator Wallace: John Wallace from New Brunswick.Senator Dyck: Lillian Dyck, senator for Saskatchewan.Senator Beyak: Good morning. Lynn Beyak, senator for Ontario.Senator Enverga: Tobias Enverga from Ontario.Senator Tannas: Scott Tannas from Alberta.The Chair: I know members of the committee will help me in welcoming our first panel from the Assembly of First Nations, represented by Stuart Wuttke, Legal Counsel; and Valerie Richer, Associate Legal Counsel. With them at the table is Guy Lonechild, currently President, Lonechild Associates, and previously Chief of the Federation of Saskatchewan Indian Nations.Some of our witnesses today have brought speaking notes or briefs in English only. Is it the wish of the committee to distribute these?Some Hon. Senators: Agreed.The Chair: Thank you. Witnesses, we look forward to your presentations, to be followed by questions from senators.Mr. Wuttke, please start off.Stuart Wuttke, Legal Counsel, Assembly of First Nations: Good morning. On behalf of the Assembly of First Nations, I would like to thank the Standing Senate Committee on Aboriginal Peoples for inviting us here to speak about Bill C428 and the proposed amendments to the Indian Act. I would like to acknowledge that we are on ceded Algonquin territory. My name is Stuart Wuttke, General Counsel for the Assembly of First Nations. I am joined by my colleague and Associate Counsel, Valerie Richer. The Federation of Saskatchewan Indian Nations Chief and Saskatchewan AFN Regional Chief, Perry Bellegarde has asked that our remarks be delivered on his behalf also. We all know that the Indian Act remains an outdated colonial statute. It was first enacted to disrupt and attack the indigenous nations collective sovereignty and has since been used to subjugate and oppress Frist Nations peoples under foreign control. It has entrenched systemic barriers and discrimination against First Nations, hindered economies, and perpetuated disadvantage since its inception. It is not surprising that First Nations leaders have consistently called for the outright appeal of the Indian Act.However, the process to move beyond the Indian Act must be driven by First Nations people, not a private member's bill. The process must have full political and financial support of the federal government over the long term. The AFN submits that Bill C428 does not reflect an appropriate process and tinkering with the Indian Act is not the answer. We need to look fundamentally to transform the relationship with the Crown. A private member's bill is not the way out of the Indian Act but only prolongs its application over the daily lives of indigenous peoples in Canada. Furthermore, this private member's bill will not facilitate treaty implementation and does not support Canada to implement its own constitution. First Nations are part of a larger indigenous nation with their own lands, laws, customs, languages and histories. First Nations are peoples within the context of international law. What First Nations have called for is recognition of their forms of government and the ability to exercise the inherent right to selfdetermination based on their inherent jurisdictions. A third order of government should be the collective goal of both First Nations and Canada. This is the more appropriate subject that we should be discussing now, not a private member's bill.Full respect and implementation of Aboriginal and treaty rights by the Government of Canada is essential in order to alter the daily lived experiences of our people who reside on reserves in urban centres in Canada. Since this private member's bill was proposed, First Nations have raised objections with regard to the amendment, including the First Nations desire to move away from a unilateral approach by the federal government. The approach taken with the amendment is contrary to the understanding. There has been no requirement for the Minister of Indian Affairs, or Aboriginal Affairs, to consult with First Nations. First Nations' calls for consultations have been repeatedly ignored, and there is no mechanism or process moving forward that requires First Nations' involvement. The preamble of Bill C428 focuses on First Nation communities that have demonstrated an interest in this work. This suggests First Nations who either have different viewpoints or disagree would be left out or the changes imposed on them. Fourthly, a process designated to change the Indian Act without First Nation consultation will further harm the relationship between First Nations and the Government of Canada. Any work involving First Nations must include a process that respects and upholds their inherent rights and treaties.I will briefly discuss areas of concern of the Assembly of First Nations with respect to this bill.With respect to clause 2, the bill requires the minister to report to the House of Commons committee responsible for Aboriginal Affairs on work undertaken to develop the new legislation to replace the Indian Act. There are several concerns with this clause.The first is that the real focus, as we all know, should be on making progress as a real first order of business rather than simply focusing on developing a report. The second is a concern that these annual reports are from the minister's viewpoint and will exclude assessments from First Nations. Clause 2 puts full control in the hands of the minister in terms of reporting on the collaboration with First Nations and other interested parties. As we have seen from the last report where the minister was asked to work in collaboration with First Nations in reports to Parliament, that being on the repeal of section 67 of the Canadian Human Rights Act, the process was flawed. The government allowed neither the time nor the resources to jointly report on the repeal of section 67 of the Canadian Human Rights Act even though this collaboration was required by legislation.Third, the process does not recognize Aboriginal and treaty rights and is not consistent with the Crown's duty to consult, nor does it represent the principle and practice of free, prior and informed consent as reinforced in the UN Declaration on the Rights of Indigenous People, which the Government of Canada endorsed in 2000.Clause 6 deals with special reserves. Lands set apart as special reserves but where legal title has not been vested in Her Majesty will no longer be treated as though it was a reserve after this act comes into force. This is a complicated area of law, and tinkering with this section could have unintended consequences. More time to understand the impact and repercussions of this change needs to be given.Clause 7 declares that bylaws no longer have to be forwarded to the minister for approval. This will create challenges if not considered as part of a more comprehensive approach to nation building. Our focus should be around the development of First Nation constitutions, including their lawmaking power and what areas of jurisdiction First Nations want or need. Bylawmaking powers should be part of this broader approach.Second, if the proposals move forward, the bylaws contemplated under Bill C428 are the current list of bylaws under section 81(1) of the Indian Act. These bylaw authorities are trivial and limited in scope and content, and cover such things as regulation of traffic, destruction of noxious weeds and regulation of beekeeping, among others. It is not surprising that bylaws relating to the taxation, licensing of businesses, raising money and expending monies under section 83 of the Indian Act still require the oversight and approval of the minister.By contrast, the City of Toronto and all of its predecessor municipalities have enacted more than 198,000 bylaws, according to the information on their website. These cover enumerated matters such as public utilities, culture, heritage, economic development and business licensing. In addition, municipalities across Canada have the power to expropriate lands, establish police services and administer provincial offences, among other duties. Arguably, municipalities have more lawmaking authority than First Nations. However, unlike municipal governments, First Nations peoples are peoples with a right to selfdetermination and selfgovernment. The proposed legislation does not move very far from the current paternalistic constraints of the Indian Act. First Nations require a more complete and broad range of lawmaking powers that enable full autonomy and jurisdiction over their internal affairs.Clause 9 has a requirement setting out that the bylaw must be published on the Internet site, in a First Nation gazette or in a newspaper and must be remain accessible on the Internet for the period in its force. This will require additional resources for First Nation communities. That clause sets out more stringent requirements for council bylaws than other levels of government.Clauses 10 and 11 give authority to band councils to enforce offences against breaches of their bylaws in section 81(1) and further impose fines for breach of bylaws. Once again, the enumerated list of bylaws under section 81(1) is limited in scope and content. It is disconcerting that one of the few new powers of the band council involves the ability to fine their members.Clause 14 repeals the section that allows the minister to enter into agreements with religious or charitable organizations for education of Indian children. This is a concern for those First Nations who choose to operate religious schools and should be amended as not to limit their operations.Second, all the provisions related to education are constructed to maintain the Minister of Aboriginal Affairs' continued control and authority over First Nation education. The federal government's control over education in First Nation communities has been a dismal failure and has led to poor outcomes for generations of First Nations peoples and children. Furthermore, the residential school experience has affected generations of First Nations people and is a contributing factor to the continued marginalization of First Nations people throughout Canada. Finally, the federal government currently underfunds many First Nation communities for education programs. What is required is a legislative framework that recognizes and implements First Nation control over education with the appropriate funding as agreed by First Nations people. This must be developed with full participation and the free and prior informed consent of First Nations communities and must be consistent with the implementation of the treaty right to education.In conclusion, I would like to summarize by pointing out that creating meaningful change means that we should once and for all put in place a process by which First Nations are engaged in a meaningful way. This current bill would further sweeping changes to the Indian Act and should be focused first and foremost on the process of achieving input and consulting First Nations.The process of creating a private member's bill does not include adequate resources for consultation and accommodation by First Nations people. If the government were serious about making amendments to the Indian Act, it should not be introduced as a private member's bill. They would ensure that there are enough resources for extensive consultations with First Nations people on and off reserve.This legislative change could chart a clear path to a collaborative process. Without such a process in place, we are charting down the same path we have always been on. As indigenous peoples, we have the inherent right to selfdetermination with the ability to enter into treaty relationships with the Crown and other indigenous nations. Under the inherent right to selfdetermination, we have the ability to create our own laws under our own jurisdiction. We don't need bylaws under the Indian Act; we need our own laws to be respected and recognized.If there is a genuine desire to see First Nations become healthier and more selfsufficient and to see a modern relationship between First Nations and the Crown develop, then this is not the vehicle to do that. If it were, then meaningful consultation would have been ensured, fully and financed, with longterm, sustainable processes for the implementation, fully supported by cabinet and the Prime Minister's Office.We need to focus on developing real and sustainable solutions that will make sense. Building on our success and what we have learned over the last 40 years from the First Nations already governing outside the Indian Act, we need to ensure that the process by which we do this is driven by First Nations for the fulfillment of treaty and inherent rights. Thank you.The Chair: Thank you very much, Mr. Wuttke. We will turn to Mr. Guy Lonechild before we go to questions from senators.Guy Lonechild, as an individual: Thank you very much, Mr. Chair. My name is Golden Eagle, former Grand Chief and Vice Chief of the Federation of Saskatchewan's Indian Nations from 1999 until 2011. I wish to acknowledge the territory of the Algonquin nation.Honourable senators, legislative clerk, witnesses and members of the public, I am here to speak to Bill C428, An Act to amend the Indian Act and provide for its replacement.I am reminded of the words of the past leaders such as Elder Gordon Oaks, Chief Denton George and Chief Richard Poorman that our treaties with the Crown remain paramount in all our action with government. In my previous presentation to the House of Commons committee on April 18, 2013, I had asked that the federal government examine avenues to properly discharge its responsibility for comprehensive consultation with First Nations as required by international and domestic law. I wish to raise this point because it involves identifying the cause and effect of our current relationship with Canada.I agree with Mr. Paul Chartrand, for example, former law professor who served on the Royal Commission on Aboriginal Peoples, who suggested that consultation should be held to a higher standard, along with those standards that may be consistent with the United Nations Declaration on the Rights of Indigenous Peoples concerning free, prior and informed consent. A piecemeal approach, such as the repeal of section 92 of the act, for example, relieves only some of the barriers to agricultural trade with First Nations people in Alberta, Saskatchewan and Manitoba.The devastating effect it has had on local economies has resulted in a continued lack of trust and faith in the federal government to do right by discouraging trade with Indians for profit and on a nationtonation basis concerning the lawmaking ability of First Nations, such as we have seen in the Frank case. I wish to point out that it has resulted in the underdevelopment of reservebased economies so acute that we are several decades behind, consistent with other developing economies around the world.If this section is repealed, the answer to what will replace it must lie in a statement made by Senator Ngo thus changes must be made in the Indian Act in order to start a process of consultation, a constructive dialogue, to repeal the Indian Act, and to replace it with a modern set of laws that reflect today's values and also respects our past. I would like to welcome any attempts to reconcile economic hardships with new and modernized economic development programming. Far too often First Nations had to rely on the Canadian court systems to drag the federal government to court dealing with lands and resources. Past members of this Senate committee and others around the country acknowledge that our economic and employment participation are nothing to be proud of and sometimes fall short on details on just how to fix this problem. One avenue I would advise the Government of Canada to take is to invest in new economic development programs for First Nations. It is estimated that resource extraction companies have helped to create over $5 billion in wealthbuilding and assets for First Nations development corporations in Canada. As a Master of Business Administration candidate from Cape Breton's University's Community Economic Development program and adviser to the MacdonaldLaurier Institute, I can provide many examples of how better governance through wealthbuilding initiatives for First Nations are changing the relationship between First Nations communities and the surrounding communities. More importantly, it is about how creating wealthbuilding initiatives changes outlooks among First Nations communities themselves. As a point of interest, I wish to further encourage new resource revenuesharing models and to expand optin legislation approaches to other willing partners in Canada. This could include examining treaty implementation, as well as First Nations, provincial and municipal governments currently involved in revenuesharing models. As a former student, I understand the firsthand harms caused by residential schools. Upon first entering residential school at the age of 7, I so wished that I had never been left on those steps, only to fall victim to both physical and sexual abuse. The solution to dealing with low graduation rates and, therefore, education and employment outcomes, has always been Indian control of Indian education. With the perseverance of people like Donald McArthur, our first chair of the board of directors, we have been able to graduate hundreds from the White Bear education complex. One solution important to reestablishing trust through amendments to the Indian Act or companion documents must be to increase funding levels equal to if not greater than provincial or/or French school standards.Finally, I would urge that this provide the mandate to the Minister of Aboriginal Affairs to do an annual reporting on progress made with the guidance and strategy developed by First Nations for First Nations. Strengthening Canada's commitment to uphold the treaties' Aboriginal rights and title consistent with section 35 of Canada's Constitution is our responsibility together. We owe this to those affected by residential schools, women and children who experience racism, or worse: murdered or gone missing.I wish to thank you very much for your time and consideration of my testimony as a witness to these proceedings. The Chair: Thanks very much to both witnesses.We will turn to questions from senators.Senator Dyck: I am the Deputy Chair of the Committee and critic on the bill.I'll start with a question on consultation. Both of you have said that you don't believe there was sufficient consultation. The private member has said that he didn't have the resources to carry out true consultation. I would like you to comment as to whether you think that is an adequate reason not to carry out consultation. Given that there's a legal requirement, is that a sufficient answer?Valerie Richer, Associate Legal Counsel, Assembly of First Nations: I'd like to answer that question, if I may. I don't think it's a sufficient answer. Recognizing that this is a private member's bill, I also don't think that the initiatives Rob Clarke carried out met the duty to consult with First Nations as well. I wouldn't say that was sufficient at all.Mr. Lonechild: Quite frankly, I would echo the comments of the Assembly of First Nations on that. There's a fairly high standard of consultation required when it comes to any changes to the relationship between First Nations people and Canada.Senator Dyck: As a followup to that question, we often see in other bills, usually government, a nonderogation clause, such that nothing in this bill will abrogate or derogate from existing Aboriginal or treaty rights. That type of clause is not present in this bill. Do you think it should be?Mr. Wuttke: It's an interesting question. It wouldn't hurt if a nonderogation clause was in the bill, but we also know that the rights of First Nations are enshrined in the Constitution. Therefore, no legislation should be able to diminish or affect or abrogate any of those Aboriginal treaty rights.Senator Dyck: Do you concur, Mr. Lonechild?Mr. Lonechild: Yes.Senator Dyck: To the AFN, in your presentation you talked about reporting and collaboration. You mentioned the repeal of section 67 of the Canadian Human Rights Act. I remember seeing the bill, but I don't remember much about what was said in the bill about reporting; and you're saying it was flawed. Could you say a little more about that and how that process compares to what's in the private member's bill? With regard to the Canadian Human Rights Act, did the bill have a more extensive clause that talked about the process? Was it more complicated than what's in the private member's bill, which simply says that they must report annually?Ms. Richer: I'll start to answer that question and then let Mr. Wuttke finish it for me. To give some background information, under an act to amend the Canadian Human Rights Act, there was a requirement, I believe in section 2, that called on the Minister of Aboriginal Affairs to carry out a comprehensive fiveyear report on the repeal of section 67. By comparison, in this bill there isn't a call for that collaboration but there is a call for the minister to report. I believe that's all it says. There is no requirement for a collaborative approach, as there was in the act to amend the Canadian Human Rights Act.That fiveyear comprehensive report was, I believe, to be carried out in the year 2013 and was required in Parliament June 2014.Mr. Wuttke: The only thing I would add is to say that part of our concerns with the reporting requirement is that the Department of Indian Affairs tends to have a very narrow scope of what they like to report on. The preamble of this proposed legislation talks about willing communities and the government talks about shared priorities and the subject matter to be reported on, whereas problems with the legislation or opposition to the Indian Act and even opposition to the inherent rights policy may not be fully shared in a meaningful way with Parliament with the First Nations views. It just may only contain the narrow, dogmatic view of the Department of Indian Affairs, or Aboriginal Affairs.Senator Dyck: Just so that I'm clear, I think you were saying that the way the bill is worded in clause 2 and the preamble, it does not require the minister to sit down and collaborate. There's nothing there that says the minister has to sit down and collaborate with First Nations. Really, it's a matter of reporting, and you're a little bit concerned that the reporting may be somewhat onesided. It's sort of shared concerns by the First Nation that wouldn't necessarily get into the report. Is that what you said?Mr. Wuttke: Yes, that's correct.Mr. Lonechild: I would agree that it doesn't create any certainty for First Nations to have their input and actually be as collaborative as needs to be, so a word of caution on that in terms of just simple reporting based on the parameters that Indian Affairs officials might provide.Senator Dyck: If I could have one more question, to switch topics now to the special reserves, you mentioned in your document and the witnesses from AFN talked about special reserves and that there may be unintended consequences. Do you have any further information regarding that?Ms. Richer: We didn't really have time to thoroughly research that, but we are concerned because we're not sure and we think that it does require more research. We were informed that there are some First Nations that were created under section 36, and we are also aware that it is used in terms of trusts that are set out for First Nation communities. It has been used in the past and there's a possibility that it could be used in the future. Before anything happens in terms of those First Nations and those implications, it really should be further looked at. Senator Enverga: Thank you for the presentation. Mr. Wuttke, you say that publishing bylaws on an Internet site will add costs to many band councils, but the Internet is only one of the media. If a band doesn't have a website, how much would it cost to publish bylaws in the First Nations gazette? How much will it affect the band's budget?Mr. Wuttke: Again, we didn't have the proper time to do full research on that. We do know that, with regard to many of these expenses, the federal government usually requires a First Nation to pay those expenses out of their current band operations budget, the band operating fund, and that covers a myriad of expenses.With the requirement that they put on the Internet or publish in the gazette or newspapers, we know that putting ads in newspapers can be quite expensive, depending on which region you're in and which newspaper you're putting those ads in. Obviously, in the more southern areas, in southern Ontario, southern parts of the provinces where the more mainstream papers are used, it would be more expensive than isolated areas.With respect to the Internet, again, First Nations are underfunded. They're strapped for catch, and the requirement for them to have a fully functional, updated website all the time that's monitored will require resources that potentially they may not have right now. Senator Enverga: Mr. Lonechild, do you have any thoughts on that?Mr. Lonechild: Once again, I concur. It would vary widely in terms of the level of detail that would be required. Some First Nations already do this in British Columbia, for example, the West Bank First Nation and many others, including Kamloops Indian band. They have gotten very good at reporting their bylaws and publishing those. There are some First Nations where it would be very new to them, and so I think we'd find that there needs to be additional resources provided to First Nations to get them up to speed.Senator Enverga: Thank you. The Chair: Maybe I will ask some questions myself, there being no one left on my list, unless I missed anyone.I'd like to direct this question to both witnesses but maybe initially to the representatives of the Assembly of First Nations. You've talked in your presentation about the need to put in place a process by which First Nations are engaged in a meaningful way. You've talked about a process to recognize and facilitate treaty implementation being necessary, and you've talked in your reference to education about the need to develop a legislative framework that recognizes First Nations' control over education, with appropriate funding.I would just like to ask you to consider this. I guess I'm kind of a practical person. This is the last year of the current government's mandate. There is a legislative mandate for an election a little over a year from now. Some are speculating that it might come sooner. There were efforts made to revive the treaty process in the Crown First Nations gathering. There were significant efforts made and I know they have been deemed a failure by some to consult First Nations on a new approach to education. A legislative framework was developed. A new funding formula was developed, which got rid of the 2 per cent cap and injected significant capital and operating and maintenance money into the existing budgets to bring them at least closer to the provincial levels of funding.You're saying we need to start a new process on treaty implementation and a new process on education. We know that one that was started has foundered, sadly. Our committee worked on this subject extensively at least two years ago and recommended a legislative framework. If you're recommending we start a new process now in the last year of the current government's mandate, are you not really condemning us to what you called in your presentation continued oppressive application of the Indian Act over the daily lives of indigenous peoples? How realistic is it that we're going to get anything done in the next year if we start a bold new process like the Crown First Nation gathering was and like the consultation leading to a new First Nations control over education act? Are you actually expecting something will happen, at least in the life of this government?Mr. Wuttke: It's an interesting question. Clearly, starting sooner on these discussions is better. Keep in mind that there are 67 indigenous nations across Canada, linguistically, and at one point they were selfgoverning. They had full jurisdiction over their lands, territories, communities and external affairs. Now we have a regime that's very prescribed with the Indian Act. We want to move away from the Indian Act constraints and go back to our rightful place as indigenous nations where we have enumerated, recognized jurisdictions and authorities. Again, there's been a whole 100year history of depriving First Nations peoples of their rightful place. I don't expect that we can solve this overnight, but clearly a discussion and the longterm ramifications have to begin to be addressed.This may not be the Assembly of First Nations’ view but, in my view, it requires a full federal family to engage in those discussions. Relying on the Department of Aboriginal Affairs, where they have a very narrow scope and very narrow mandate, always results in a consequence that is something we do not appreciate or like. If we have Justice Canada and all the rest of the federal family involved in our discussions, I think that probably would be more practical, and it would be a better result in the end for that.Again, despite whether it starts now in this last year of the government, who knows what the election results will be and whether the Conservatives will win again, we have no idea, discussions should start taking place. The prolonging of the oppression of First Nations people should not be tolerated in this day and age.When I was in university in my undergrad over 20 years ago, I wrote about the right to selfdetermination 20 years have passed. I was expecting at the time during the Charlottetown constitutional discussions that there would be movement, but here we are 20 years later and we're still no better off. Are we going to wait another 20 to 40 years for the discussion to begin? Are my grandchildren going to be in their mid40s, like I am, before we start having the discussions? I hope not. We implore that the discussions begin to take place. Thank you.The Chair: Mr. Lonechild, do you have a comment?Mr. Lonechild: Some might argue that the only way forward might be the concept of treaty federalism and looking at municipal, First Nations, provincial and federal governments sitting down to discuss ways forward where First Nations have meaningful input.I point to Northern Canada, for example, where land claim agreements have mandated these groups to sort out issues like wildlife conservation, economic development, resource revenuesharing and a number of opportunities and models that exist, apply not only to comprehensive land claim areas but also to those who signed number treaties as well.I would welcome that discussion and any discussion that moves that agenda forward, because I am in my early40s too, and it's just dragged on far too long. We have to move forward with selfgovernment discussions at a committee level.The Chair: Thank you, Mr. Lonechild, for recognizing that we might have a model in the North that has lessons for the rest of Canada. I have long thought that.To continue this a bit with Mr. Wuttke, the CrownFirst Nations gathering did involve the federal family, I understand. It included way more than just the Minister of Aboriginal Affairs. Parliament was stormed and maybe I exaggerate in saying that. There were protests in the streets just over the holding of that meeting. We lost the Assembly of First Nations Grand Chief over the introduction of a legislative framework for education. Our committee wanted to at least begin discussions on that bill. The protests over the introduction of the bill and the controversies over the adequacy of consultation led to it not even being discussed in a committee of this Parliament. Just to put to you,, there is a school of thought that says we're all frustrated over the decades of failure to move on the big picture stuff. Here's a First Nation member of Parliament and you said First Nations should be engaged. Well, Mr. Clarke said that he's a First Nations member of Parliament; he's been bugged about this Indian Act as a policeman trying to enforce its archaic outdated colonial provisions; and wanted to at least do something to chip away. I know it's imperfect, maybe, but are there not some amendments in this bill, like getting rid of the reference to residential schools surely we all want to close that chapter, and the publication of bylaws that maybe we should consider approving even as we look to a bigger picture solution?Mr. Wuttke: We view this, again, as tinkering with the Indian Act. Many chiefs, over a number of years, talked about tinkering with the Indian Act not being an option. I mentioned our rights and what we once were as indigenous nations across Canada. The goal for many First Nations communities is restoring their nationhood, their lineages, their culture and their languages. These amendments do not do that in any sense. My respectful view, or that of the Assembly of First Nations, on this is that we need to have the larger picture discussions. We need to resolve those.The small amendments in their entirety do not provide us with anything. So much has been taken away from us so much of our rights and governance have been infringed on. We need to get back to a place where we can exercise our inherent authorities. Senator Moore: Thank you, witnesses, for being here.The chair's questions have led me to think about a bill that was introduced in the Senate on April 30, 2008, by our former colleague Senator Aurélien Gill, who is a First Nation member and former chief: Bill S-234, An Act to establish the assembly of the First Nation peoples of Canada and executive council. It proposed to get rid of the ministry and everything else. I thought it was a wonderful bill, a wonderful model. I don't know if the three of you have looked at that and considered it. I thought it presented a wonderful opportunity for First Nations to try to put in place a selfgoverning framework that would restore the nationhood that has been taken away. Are you familiar with that bill?I wrote to a number of chiefs, including then Grand Chief Shawn Atleo, and sent copies; but I didn't feel the love. I didn't feel the energy to pick that up and move on it. I thought it was a wonderful opportunity as it would have removed so much. We wouldn't even be talking about this today if that bill had gone forward.Mr. Wuttke: The only bill I really recall is one that Senator St. Germain drafted a number of years ago.Senator Dyck: It was Bill S212.Mr. Wuttke: With respect to these bills from the Senate, no offence, but the intelligence that we received was that the House of Commons would never support that proposed legislation.At that time, it became difficult for us to fully support something that wouldn't get off the table with respect to the House of Commons.Senator Moore: As you know, in the Senate we can introduce proposed legislation; and Senator Gill certainly did that after much research. It doesn't matter whether it might pass in the House of Commons because it provided an opportunity. If you get behind something and the support comes forward, it has a lot to do with persuading or changing the political will.Would you like to have a copy of that bill? Mr. Wuttke: Yes, please.Senator Moore: It might be useful down the road. I think it is a wonderful framework developed by a fellow First Nation member, who wasn't a lightweight. This man thought about it for years. He consulted with First Nations around the world; and he is a member of the Order of Canada. I think you should take a look at it as it might be instructive.The Chair: Thank you, Senator Moore, for the good advice.Senator Beyak: This is just a followup to what you asked. I wondered if you think this doesn't at least open the door. It is a First Nations’ member of Parliament who doesn't like the Indian Act and wants to have dialogue. I read the bill from cover to cover, and I think it's imperfect too; but I believe in my heart that it opens the door for consultation and discussion, which are long overdue. Changing the Indian Act is such an enormous undertaking, as you've mentioned so well in your presentations. Thank you. Ms. Richer: I'd like to answer that. I have to commend his efforts in trying to do something. I understand that and have some compassion for that. At the same time, I do think it is somewhat misguided. It's not a question about really whether or not the Indian Act should stay or go. We're all in agreement that it's a colonial piece of legislation that's got to go, but the focus really shouldn't be about this tinkering. We should be having a discussion about how that should happen. I really think that should be the discussion that we should be having.Senator Beyak: Thank you. Mr. Lonechild: I would concur. Previously I'd said that I support anything that moves this conversation forward. That hasn't changed today. I'm not happy that the tinkering with the Indian Act has limited us to this discussion because I think it deserves a far wider discussion than what we've been having. Senator Wallace: My questions are along the same line, Mr. Wuttke. In responding to the chair, when he asked you if there were any aspects of the bill you felt would advance the interests of First Nations people, as I understood your response, you spoke about other issues that were of more concern to you. I can certainly understand that, and certainly Mr. Clarke acknowledges that this is not a complete and comprehensive approach to changing the Indian Act. In order to move it forward, in order to give encouragement that improvements can be made, more of an incremental approach, which is what I see in this bill, isn't there a logic to this? Isn't this moving or advancing the cause in some way, at least, that perhaps will create some encouragement among First Nations people to go the next mile and complete the process? Doesn't that make sense? This isn't perhaps a fair analogy, but it's a little bit like omnibus bills. There's great criticism at times of omnibus bills because they're too encompassing, trying to look at the big picture and trying to bring it all together, and that's criticized as being too grand. If you then say, "Let's deal with it piece by piece; let's start something," doesn't that make sense? Are not there pieces in this bill that would be advancing the interests of First Nations people? The one that comes to mind is the residential school provisions. Do you have any comment?Mr. Wuttke: Well, nothing really is changing in this bill, as far as I'm concerned. The section 81 powers that First Nations have, the bylawmaking powers, are the same ones. They're still there. The only difference is they no longer have to have the minister's approval for that, but Indian Affairs usually approves those anyways. They rubber stamp it. Really, in practice, nothing has changed.With respect to the removal of the residential school aspects, I was involved in selfgovernment negotiations at one point, and one of the federal negotiators told me, "You know what? You can say all you want, but we have ultimate jurisdiction. We made laws that restricted the use of your language and your culture. We did it in the past, and we can do it again in the future, should we wish." It was a really offensive statement. The simple fact is that while section 91(24) is utilized by the federal government to control First Nations people, we can put in any protections we want but, in the end, they still have the authority under Canadian law to do certain things that are to the disadvantage of First Nations people, and perhaps even harmful. That has not changed with this, and it will not change. Whether an incremental approach is appropriate? I mean, we look at the practical arrangements the federal government has talked about over the years, the inherent right policy, and some of those avenues are acceptable to some First Nation communities, and they have done well and they have partaken in those. It's clearly up to them, up to their free will, free and prior informed consent. But when we have a wholesale change to the Indian Act, looking at changing some of the relationships, I think there has to be more consultation. There has to be a better process for that.Senator Wallace: Thank you.Senator Raine: Thank you very much. It's good that you're here, and we are all interested in making things better.I want to ask you, especially the AFN representatives here, what you would propose as a valid, practical form of consultation that would arrive at free, prior informed consent. We know that there are many, many First Nations, and they are all across the country and at different levels of capacity and different histories and cultures. It's very difficult to have everybody agree on anything. Yet, if we are going to have consultation that arrives at agreement, we need to have a form of consultation that is acceptable to all parties. Have you been working on a road map for an acceptable consultation system or a document that would outline it? I have been on this committee now for five years, and we always get the answer about not enough consultation, even though the people doing the consultation felt they did their very best to consult with everybody. If consultation means everybody has to agree before the consultation is deemed allowable, then I'm not sure we'll ever get any solutions. I would like your comment on what you would propose as an acceptable method of consultation for all of these issues. I don't think we have time for this. Maybe we need to do a new study on it, but it just keeps coming up, consultation, not enough consultation. If you could comment on how we should move on that, that would be good.Ms. Richer: Recognizing, you're right, that we don't have very much time, I totally agree with you in terms of the suggestion that maybe the committee should look at that as an issue. Consultation is an important issue. We have examples out there where we could look at things, where we've had successes in selfgovernment agreements where there's been a lot of work in terms of consultation. When we pick the lowlying, lowhanging fruit in terms of making small, tinkering amendments to the Indian Act such as this, we're really diverting from the real discussion that should be happening. As I said earlier, we shouldn't be talking about whether or not we should do this. We should be doing this. We should be talking about how we do that, and we should be talking about consultation. I would be very supportive of the committee looking at how exactly that would happen. There's a lot of support and evidence out there in terms of how we do something like that. Senator Ngo: The question I wanted to ask has already been asked by other senators, but I am going to ask a question anyway.Chief, you just mentioned that all the First Nations would like to get away from the Indian Act and so on. What I see in this bill, Bill C428, is that in a certain particular way, it takes bit by bit from the Indian Act. I would say that it's like baby steps. You cannot change the whole process of the Indian Act to just get away from it. For example, I see clause 2 of the bill requires the collaboration process of the consultation, which you would like to mention, between the ministers and the First Nations. Clauses 15 and 19 remove the term "residential school," which we also would like to get away from. Clause 5 also removes the impediment for trade. With all those good things, can we agree that this bill takes away part of the Indian Act, which the First Nations would like to get away from?Mr. Lonechild: Yes, I can say that some of those changes have resulted in positive progress, I would call it, in terms of doing away with the restrictions on trade, wills and estates as well. Kinship care, I think, and customary adoption in various provinces I think has also been struck from it. I think it is minuscule progress, but it is progress.Senator Ngo: So then can we say we accept these three positive things, and then we can go on with clause 2, the collaboration with the consultation process and the minister, in order to keep going? Basically, can we do that? These are baby steps, but I think it's a good step.Mr. Wuttke: The only thing I would say about the baby steps is that people say small, pragmatic approaches are good and preferable, but you have a number of First Nations that have entered into selfgovernment agreements and overnight they have lawmaking authorities, and they're exercising them. We have a lot of good examples out there of processes that work that would get us to that stage. It's not small steps in those circumstances; it's an overnight shift. And I think that's definitely accomplishable because it has been accomplished in the past.As far as the bits and parts of this bill that are being taken away or removed, again nothing has really changed. There are no residential schools right now. The fact that you take that provision out of the bill doesn't change that fact. There are no residential schools. I don't think the residential school will come back in the near future.You can look at it and say there are positive things about it, but in the end I don't think anything has changed. The lawmaking authorities the First Nations will have are the same ones they have now. The only difference is now they are rubberstamped by the federal bureaucracy and in the future they won't be. In my mind there is not a significant change. The only thing it does is delays further development of First Nation governance. This may give the federal government or Aboriginal Affairs an excuse to say you have selfgoverning authorities, you have the authority to make bylaws yourselves. That may push back real discussions on the implementation of selfgovernment to a future time. I don't think that's acceptable.The Chair: We're running a bit over time, so I will give Senator Dyck and Senator Moore some second-round questions, but I trust you will be brief and the answers will be brief. We have other witnesses waiting.Senator Dyck: I will be brief, and I think I might save one of the questions for the next witnesses.One thing I want to point out is that there is some confusion. Senator Ngo, when you were talking about residential schools you referred to clause 19. There is no clause 19 in the latest version of the bill. You were reading from a prior version of the bill. Mr. Clarke, when he was here, was also reading from the wrong version of the bill. When people look at this transcript they will be confused, because we are using two different versions. Senator Ngo and Mr. Clarke were not using the correct version.This speaks to the heart of private members' bills in terms of whether we have the correct version. We had the correct version delivered to us in the chamber, but obviously we don't all have the correct version in front of us, just to point that out.The Chair: Thank you.Senator Dyck: Clause 18 in the new bill removes the words "residential schools." It does not remove the words "day school." Day schools were also sort of residential schools in the terms of the abuse going on in day schools. This will not address, in terms of reconciliation, the abuse that went on in day schools which was very prominent amongst the Metis people and nonstatus Indians. Do you think the claims that this is addressing reconciliation are true or are they incomplete?Mr. Wuttke: Thank you. We recognize that as well, that the day schools, the language itself is not consistent with today's day and age where you talk about elementary schools and postsecondary.Senator Dyck: Exactly.Mr. Wuttke: Even some of the other educational programs out there, it still uses the antiquated description of schools, which should change.Senator Dyck: Does that have an implication in terms of funding if we don't use the modern terms for elementary and secondary school?The Chair: Is that a question for the Assembly of First Nations?Senator Dyck: Yes.The Chair: Or the government?Senator Dyck: I'm asking for their interpretation of it.Mr. Wuttke: Our view is that First Nation education is underfunded, as of today. We can't meet the standards of neighbouring communities. If you look at First Nation high schools, for instance, they have enough funding to provide academic or applied education. They can't offer both, unlike regular schools. I think that the issue of funding, there are definitely problems there.Senator Moore: My question is a supplementary followup to Senator Raine's question. I'm not sure of the answer that you gave.Have the 67 indigenous peoples or their representatives sat down and tried to put together a proposed consultation process?Mr. Wuttke: I don't believe they have sat down. They may have in the past. Clearly prior to contact we had external relations amongst the indigenous nations out there. There were definitely protocols and treaties that were followed. You have to remember, each indigenous nation is separate. They have their own history, culture and governance systems. What may work for the Mi'kmaq Nation, for instance, may not necessarily work for the Ojibway, Cree or the Dene. I think we need to look at a process that is specific to each indigenous nation.Senator Moore: How do we proceed? If everybody in the room wants to get rid of the Indian Act and try to reestablish selfdetermination, will we do, one by one, each of the 67 First Nations? Are there some common elements? I sort of feel like we're doing your work. The committee can't decide that, but it's pretty foundational to how we go ahead and how we look at other bills that may come before us. We have to have some kind of a consensus as to what the position might be among our First Nations peoples.Do you see us asking, for example in this bill, the same question 67 times? You're a lawyer, you know that's not a very good use of time. Have you given some thought to a structure that might work to provide that consultation process without being repetitive and which really shows good intent and moving ahead?Ms. Richer: I'd like to take a stab at answering that question. I'm reminded of a quote, I think it was from the Penner Report, that said that the days of sitting down and talking about fixing the Indian problem without having Indians at the table is long gone. I think having people do Senator Moore: No argument with that.Ms. Richer: consultation and having people sit at the table is the way to go. I think discussions like this are a diversion from getting to that real discussion.If we continue to talk about tinkering with something on a small level instead of getting to the real issue, looking at consultation, it's going to be a really long process because we're never sitting down and actually taking a commonsense approach and actually doing the consultation work that needs to happen.The Chair: That's an important subject, but I will have to cut that short.Mr. Lonechild, you have been involved in economic development initiatives. We heard from MP Clarke that there is a long time waiting for bylaws to be approved by the minister; it's not just a quick, rubberstamp process. He said it holds up economic development. Do you have any comments on that, removing that step of ministerial approval?Mr. Lonechild: I believe I do. The short answer to that is there are First Nations entering into the First Nations Land Management Act, for example, that attempts to restore some of that decisionmaking at the community level and help to speed up development in that regard. I believe it speeds it up, but again when it comes back to the other question about consultation, when you're starting to look at changes to the Indian Act, you have to really do a pretty exhaustive consultation process. I think there are examples where First Nations around the country have agreed to do that; and doing it through certain processes like that can be a way forward.The Chair: Thank you very much to our first witnesses. Our next witnesses are Mr. Manny Jules, Chief Commissioner, First Nations Tax Commission; and Betty Ann Lavallée, National Chief of the Congress of Aboriginal Peoples. Welcome. Ms. Lavallée, please proceed.Betty Ann Lavallée, National Chief, Congress of Aboriginal Peoples: Good morning, chair and committee members. It's a pleasure to be here on the traditional land of the Algonquin peoples to speak to you about Bill C428. I am the National Chief of the Congress of Aboriginal Peoples, formerly known as the Native Council of Canada, which has represented the interests of offreserve, status, nonstatus, Southern Inuit and Metis throughout Canada since 1971. The congress is also the national voice for its affiliate organizations that advocate on behalf of Aboriginal peoples living off-reserve.The congress has been a strong advocate of amending the Indian Act or doing away with it. The provisions of this act are rooted in colonial ordinance directed at imposing regulations and restrictions for the purpose of assimilation. These restrictions created the removal of Metis and nonstatus Indians from their historical communities in the first place. Our organization supports the removal of the archaic provisions created under the Indian Act or, as I said, outright abolishment of it, for instance, eliminating the minister's control and authority over wills and estates. Canadian governments do not control the average person's wills and estates; likewise, Aboriginal peoples should be able to take control of their own affairs and not be subject to such scrutiny. The removal of the phrase "residential schools" from education provisions in this bill is a big step forward. In June 2008, the Prime Minister apologized for the residential schools. No one should ever forget the tragedy and injustices done to many Aboriginal peoples. However, it is still necessary to move forward with improving the horrific social conditions that many Aboriginal peoples, both on and offreserve, find themselves in.Our constituency has been touched by the residential school system. In fact, many of our people relinquished their status so their children would not be forced away from their homes and into these schools. The Truth and Reconciliation Commission of Canada is now a major part of Indian residential schools settlement agreement. This amendment could be part of the healing process for all who were personally affected by the residential school system.The Congress of Aboriginal Peoples, along with other national organizations and participants, partner with the federal government in the Joint Ministerial Advisory Committee to assist in drafting Indian Act amendments. This committee tabled their final report on March 8, 2002. The report laid out recommendations and legislative options for the First Nations Governance Act. At that time, our organization was supportive of this initiative. Some of the proposals put forth in Bill C428 are not dissimilar to the provisions put forth in the Joint Ministerial Advisory Committee report and the First Nations Governance Act. For example, Bill C428 repeals section 85.1, bylaw relating to intoxications under this act. The governance act also addresses section 85.1 and how these limitations have long been criticized by bands and representative organizations are out of keeping with traditional lawmaking practices.This bill also provides permitting and mandating of individual First Nations councils to publish bylaws. This measure allows for more inclusion of all community members regardless of residency. Aboriginal peoples should be informed about what is happening in their communities. Since the Corbière decision, Aboriginal people who live offreserve have had the right to vote in elections. They also should have the right to participate in and vote on decisions regarding specific and comprehensive land claims and resource issues. Unfortunately, this is not always the case. One of the most significant aspects of Bill C428 is that it would require the minister to report annually on the work undertaken by his or her department in collaboration with First Nations organizations and other interested parties to develop new legislation to replace the Indian Act. We, at the Congress, believe that this is a useful and positive initiative to keep all parties informed on the progress of Aboriginal and Northern Affairs Canada.The Indian Act was one of the first pieces of federal legislation to define and create arbitrary classes of Aboriginal peoples, such as status, nonstatus and Metis. Prior to delineating Aboriginal peoples, it was understood that nonstatus and Metis were included and had the special protection of the Constitution Act, 1867, under section 91(24). This section provides Canada's federal government with exclusive authority to legislate in relation to Indians and lands reserved for Indians. Over the last century and a half, nonstatus and Metis were gradually excluded from the same rights and privileges as status Indians and the protection of 91(24). A recent federal court decision, Daniels, ruled that Metis and nonstatus Indians in Canada are Indians under section 91(24) of Constitution Act, 1867.This decision marks a new relationship with the Government of Canada. As a national Aboriginal organization, we fully expect the government to abide by their duty to consult. Mr. Clarke has done just that. He consulted with the Congress of Aboriginal Peoples and on several occasions about his private member's Bill C428 with some of our communities those interested in learning more and those who invited him. On the whole, this proposed legislation addresses obsolete sections of the Indian Act and promotes more participation from offreserve community members. As a Mi'kmaq, I am a registered Indian under the Indian Act with status tied to an Indian Act band. Although I live offreserve, I am recognized as a Mi'kmaq woman with treaty and Aboriginal rights under the peace and friendship treaties.Much of the relationships between the Crown and Aboriginal peoples are treaty and treaty relationships, not the Indian Act. There are members in our constituency who are nonstatus Indians with treaty rights, but they are not protected under the Indian Act. Treaties were established before the Indian Act. Treaties did not discriminate. Status and nonstatus Indians and Metis were all included in treaties.The Congress of Aboriginal Peoples respectfully requests a helpful addition to this bill. We believe the annual report by the minister should be amended to include the implementation of treaties. Most nonAboriginal people and even the media seem to think that the relationship between the Crown and Aboriginal peoples is based on the Indian Act. This is not the case. The treaty relationship is the basis of the relationship. It is not solely based on legislation. To view it otherwise would limit our thinking to only those issues that are currently covered by the Indian Act and not those that are broader in scope. This is an instrumental bill. It's important to address the distinctions made between people living on and offreserve as well as the broader principles.Thank you.The Chair: Thank you very much. We now look forward to hearing from Mr. Jules, who, like Ms. Lavallée, is not unfamiliar to this committee. Welcome.C.T. (Manny) Jules, Chief Commissioner, First Nations Tax Commission: Honourable senators, good morning. My name is Manny Jules, and I am the Chief Commissioner of the First Nations Tax Commission and have been involved in First Nations politics for over 40 years.Thank you for the opportunity to appear as a witness before the Senate committee on Aboriginal peoples. Today I am here to speak in support of Bill C428, An Act to amend the Indian Act (publication of bylaws) and to provide for its replacement. Before I begin, I would like to thank Mr. Rob Clarke for his hard work and diligence in his pursuit of this private member's bill. As someone who has led an amendment to the Indian Act, the Kamloops amendment in 1988, I understand the personal commitment and perseverance required to make any changes to that act. While it is clear that First Nations people unanimously dislike the Indian Act, there is no unanimity as to how one should change it, or if it should even be changed at all. Just scrap it and start over, some say. I have lived my entire life under the Indian Act. Often described as paternalistic, racist, colonial legislation, it has underpinned all facets of First Nations life since the 19th century. The changes proposed in Bill C428 are incremental in nature and not a complete rewrite of the Indian Act. Short of scrapping the Indian Act, the changes proposed here are positive and long overdue for a 21st century Canadian society. Who can disagree with a First Nation having the ability to sell produce off reserve without having permission of the Minister of Aboriginal Affairs? Who would be at odds with the First Nations keeping the revenue from fines they levy, rather than handing the revenue over to Queen Elizabeth? Who could argue against the removal of any reference to Indian schools from the Indian Act? I have long advocated for the elimination of the minister's ability to seize children from their homes.In my own view, as someone who was made to attend a residential school, the removal of these shameful and painful sections of the Indian Act should be applauded. The changes proposed to bylaw sections of the Indian Act are also important, and it is this area I wish to expand upon. The mandate of the First Nations Tax Commission includes the approval of property tax laws passed by First Nations pursuant to the First Nations Fiscal Management Act. It also includes providing advice to the Minister of Aboriginal Affairs on the approval of property tax bylaws passed by First Nations pursuant to section 83 of the Indian Act. This process is set out in a memorandum of understanding between the commission and the minister.To be clear, Bill C428 does not change the requirement for ministerial approval of section 83 bylaws. Our mutual responsibilities set out in the MOU are unchanged.Conversely, Bill C428 proposes that a bylaw passed by First Nations pursuant to sections 81 or 85 comes into force on the day it is first published. This, in effect, removes the minister's ability to disallow these bylaws. Further, Bill C428 amends section 86 of the Indian Act by adding new provisions to deal with the publication of bylaws. It now includes the First Nations Gazette as an option to First Nations to publish the bylaws they pass. This is a positive step. For those of you not familiar with the First Nations Gazette, allow me to provide you with some background as to its creation. In the 1980s, Canada exempted First Nation bylaws and notices from the publication in the Canada Gazette. The effect of the exemption from publication under the Statutory Instruments Act was to place the burden of providing notice and publication of bylaws with the First Nations. The public exemption did not alter the fact that First Nations bylaws could be struck down for lack of due process in notification, passage or publication.In response, as chairman of the Indian Taxation Advisory Board, the predecessor to the commission, I led the development of the First Nations Gazette with the help of the Native Law Centre at the University of Saskatchewan. The First Nations Gazette was officially launched on Aboriginal Day in 1997. To assist First Nations in providing notice of their laws, it is published by the First Nations Tax Commission and the Native Law Centre. Today, more than 180 First Nations from every region of Canada use the First Nations Gazette. More than 3,000 bylaws, laws and land and governance codes and public notices are published.Like the Canada Gazette, the First Nations Gazette is committed to maintaining the highest professional standards for legal publication. As a single and authoritative point of reference for First Nations lawmaking and notice, the First Nations Gazette safeguards the First Nations lawmaking jurisdiction and promotes transparency and accountability. Through its searchable inventory, the gazette provides direct access to the laws that may affect First Nations citizens, leasehold and other residents living on reserves, electors, legal practitioners and those with an interest in reserve lands. Like the Canada Gazette, the First Nations Gazette is now exclusively an electronic publication. The gazette can be found at www.fng.ca. There is no cost to access or use of the notification services of the First Nations Gazette. I am certain that someday all First Nations laws will be housed at the First Nations Gazette. I would encourage Parliament, and in particular senators, to help us in this regard. Finally this bill requires the Minister of Aboriginal Affairs to report annually on the progress made to develop new legislation to replace the Indian Act. This is a key element to this bill and one that the commission strongly supports.In closing, let me state I am pleased with the changes proposed in Bill C428. While I am among those who would like to see the Indian Act gone, I also understand that you cannot eat an elephant whole. This will take time and an alternative will be needed. As the Prime Minister described the Indian Act, the tree has deep roots; blowing up the stump would just leave a big hole.In my view, we cannot afford to wait. Incremental change or working around the Indian Act, like we did in 2005, with the passage of the First Nations Fiscal Management Act, is the only way to proceed at the present time. In that regard, Bill C428 represents a positive step forward. Thank you.The Chair: Thank you both very much.Senator Dyck: I will start my first question with regard to consultation.The private member told us that he sent out 600odd letters to all the First Nations across Canada six times. He received responses and so on, but he didn't, by the sounds of it, actually analyze or tabulate those responses. I know, Chief Lavallée, you have said that you thought he had fulfilled his duty to consult because he had consulted with you. What about all those other First Nations and organizations? By the sounds of it, he sent the letter out, and at one point he said to educate these people, but by the sounds of it, he couldn't show us how he took their input into account in producing the bill.Ms. Lavallée: All I know is we received the letters, and the letters were sent on to our provincial organizations. Of course, at that point, it's up to each of them to contact Mr. Clarke and ask him to come to their community. Some took advantage of the situation. I know he did come and speak with us at the national office on the bill and what he was proposing. He also attended one of our AGAs and spoke with community members who were there.As for the other national Aboriginal organizations, whether or not they took advantage of contacting him and inviting him, I can't speak to that. I can only speak for my organization.Mr. Jules: I think we have to keep in mind that this is a private member's bill. As a private member of Parliament, you don't have access to the same kinds of resources as the government itself, and so it's very difficult, but I do understand the concerns of First Nations saying that they haven't been consulted.But at the same time and I made sure I said it at the onset I've been involved in these matters for over 40 years. I started attending community meetings when I was 15 years old, when my dad was the chief. In 1975 with Chief Mary Leonard and I was a council member in Kamloops we said at that point we wanted the Indian Act gone in five years. Well, it's been the longest five years of my life.Senator Dyck: Okay. I think I'm going to move to the residential schools sections. The bill proposes to take out the term "residential schools," and I mentioned this before, it hasn't taken out the term "day schools" and it doesn't use the modern terminology. Do you think there should be changes made to the bill to accommodate the fact that day schools are still within the bill? Ms. Lavallée: I would not disagree with you there. I mean, to me, "residential schools" would include both. They are obsolete now. They should not exist, and if it gives a comfort level to those who are afraid of losing educational benefits, then I don't see there being a problem with adding "elementary" or something to it.Mr. Jules: The history is very critical here. Residential schools has its history in firstly establishing not schools for education but industrial schools so that we could be taught to learn how to be maids and farm and whatnot. My understanding of the reason that day schools are still in place is because that's a lot of times in my own community at Kamloops, we operate Sk'elep School of Excellence, and that's funded in part by tax revenue collected by the band, but also through the Department of Aboriginal Affairs, and if you remove that section without having adequate other safeguards, we would potentially lose that source of revenue.I do understand, though, that the level of funding is not adequate in any of our schools, and we need more capital revenue; but unfortunately, that piece of legislation was not acceptable by the Assembly of First Nations and others.Senator Dyck: My mind is getting a bit foggy here. With regard to residential schools, yes, the private member believes that by stroking out the words "residential schools" from two clauses in the Indian Act it will prevent the government from ever having another residential school. Is it your view that that action alone will prevent such an occurrence in the future? Can we legislate the future actions of any government just by taking out those two words?Ms. Lavallée: I honestly do not believe in this day and age that any Canadian citizen, Aboriginal or nonAboriginal, would ever allow something like that to occur in this country. We have a thing that now protects us called the Human Rights Act, plus the support of international charters. So to me, striking it out is striking it out.Mr. Jules: I think that in large part it's symbolic. It says to Parliament and to First Nations, and more importantly to the minister responsible for the Indian Act, that we shouldn't ever go down that path anymore. That's not to say that there can never be an Indian residential school at some point in the future, and I would never support it, but at the same time, you know, it's a symbolic gesture that I think should be embraced. I personally support it. I'm a residential school survivor, and you know, my dad went to the residential school, my grandfather, my grandmother, and it's something that is so important that we should never even contemplate going back there.Senator Dyck: And to follow up on the residential schools, and that will be my last question for the first round, there's been a lot of talk about residential schools over the last five or six years, and actually I had not realized until today there's actually a framed copy of the Prime Minister's apology just to the left side of the door as we come in to remind us of that.At the very first meeting of the Truth and Reconciliation Commission in Winnipeg in I think 2010, the thenMinister Strahl said that he would remove these provisions, and yet here we have it in a private member's bill.Do you see any concerns with that, when it's a government initiative announced four years ago and the same clauses were in this First Nation education act that our chairman talked about with the previous witnesses? What does that say to the public? Do you think it's a good idea to go through as a private member's bill, or should it have been a government initiative since it is such a sensitive and important issue? Shouldn't the government have come forward and said, "We have apologized and we will take it out," but they've left it to a private member. What's your view on that?Ms. Lavallée: Well, it's always nice when government brings forth bills that improve conditions for people in general. I'm not just speaking about Aboriginal people. I'm talking about all of Canadian society, but I've been in office for six years, and since I've been in office, I have gone through five different ministers of Aboriginal Affairs, and unfortunately, when you constantly have a turnover of ministers, you also get a turnover of ministerial staff, and what might have been a priority of one minister is now not necessarily going to be the priority of the next minister.I think something like this has just been lost in the shuffle somehow somewhere. I try to give people the benefit of the doubt without saying that it was done deliberately, because I don't think anybody would do that deliberately to a people.Mr. Jules: My understanding is that those provisions that Minister Strahl had made a commitment to take out made up part of the education bill, and unfortunately that was you know, the government has withdrawn that particular piece of legislation. We all would like to see the Indian Act done away with. These particular sections, among many others as I said in my opening statements, it's all abhorrent to me. I would sooner live outside of the Indian Act than in it, and in that regard I'm an outlaw.Senator Dyck: Thank you. Just as a point of information, on the website for Government of Canada, Aboriginal Affairs there is a backgrounder on changes to the Indian Act affecting Indian residential schools. It covers all of the things that we're talking about in this bill. So it's actually on the official department website, so if they've forgotten about it, they have it on their website.The Chair: Thank you.Senator Tannas?Senator Tannas: Thank you, chair. Chief Lavallée and Mr. Jules, thank you for being here. Mr. Jules, I really like your comment about how difficult it is to eat a whole elephant in one bite. There's another saying that I've heard, and I really admired, which talks about the tyranny of the "or" versus the genius of the "and." To me, the idea of incremental changes or doing it all at once versus incremental changes and pursuing a much larger solution seems to me to be the most attractive issue. I just wanted to ask, maybe for the record, to hear your thoughts. You've pursued two major initiatives, the Kamloops amendment in 1988 and then the First Nations Fiscal Management Act 2005. Could you maybe just contrast for us where things would be if everybody had taken the counsel to wait for some global solution to come rather than these two important incremental changes?Mr. Jules: Well, it wasn't just those two major pieces of legislation. I've also been involved in a myriad of others, federal and provincial legislation as well as at the local level.My mentor is my father Clarence Jules Sr. He had a saying: You can't fix a flat tire by shouting at it. That's my philosophy. His other saying was: We've got to be able to move at the speed of business. That's dictated my whole career as far as making sure that First Nations were an integral part of the economy.Also, I sat as a member on the Forum of Federations, and it is through that process I realized very clearly that we had to be a fundamental part of the politic of the Canadian family constitutionally but also importantly part of the economy.When we talk about what might not have happened, right now, we've generated as a tax commission about $1 billion for First Nations communities right across the country and induced as a result of that jurisdiction about another $1.5 billion that's allowed communities to build their own schools, build their own roads, put in their own water systems, develop a professional civil service, all of those things that other Canadians take for granted.What we need right now is the ability to be able to establish our own laws and our own institutions within the Canadian constitutional framework. Right now, there are 157 communities involved in property tax. I'm the guy who sells refrigerators to those who don't need it. I go into a community and people are saying immediately, "What is this guy doing here? He shouldn't be here."Tax is a fundamental part of selfgovernment. Without tax and without selfgovernment, you can't have an economy, and you can't have all of the things that I heard others talk about, and I've heard talk about for many, many years as a matter of fact, many generations now.What I've learned is through practical application. Because there's no consensus, the only way forward is through incremental change.Senator Tannas: Just coming back, then, to Mr. Clarke's bill, he has, as a member of Parliament and as a member of First Nations, decided not to yell at a flat tire but in his own modest way said, "Here are some incremental changes that I can propose," along with an "and". “And I can put something in there that at least requires some discussion to take place." Is there more he could do, or is this enough?Mr. Jules: Well, there's no end to it. There are literally limitless opportunities. What really prevents us from moving forward is our imagination. My son, when he was about six years old, was afraid to go to sleep. I said, "Son, I'm right here. You can just go into bed. You know, don't worry. What are you afraid of?" And he said, "My imagination." That's what is limiting us, because a lot of people can't imagine life without the Indian Act.Obviously Mr. Clarke could do much, much more, but he is a First Nations person who has thought about this an awful lot and has said, "In my time, this is what I want to be able to contribute." That contribution means, just like Michelangelo when he worked on the Pieta, that you didn't get to the Pieta right away. He had to chip away at it, but he had the imagination to be able to see and make that stone turn into something that's incredible. Senator Tannas: Thank you, sir. Senator Enverga: Thank you to all our presenters. Earlier today, with our previous witnesses, it was mentioned that there are costs to application of service. Just recently, you said there's no cost. Can you please explain to me what the cost is, or is there no cost at all?Mr. Jules: The First Nations Tax Commission and the university in Saskatchewan provide this service for free for First Nations. There is an actual cost. We negotiate this with the ministry on an annual basis, and it's approximately $190,000, but that isn't something that's passed on to First Nations communities. That's something that's borne by the Government of Canada and by the First Nations Tax Commission.Senator Enverga: With this new bill, you will have fines. Would that help you in some ways?Mr. Jules: Well, obviously it does, but when you look at the fines that are dictated under the Indian Act, it's $500 or $1,000. We had a situation when I was chief at Kamloops where a guy burnt batteries to get the lead out and tried to recycle contaminated BC Hydro transformers. He was only subject to a $1,000 fine. The statements earlier on are true. The amendments that Mr. Clarke is proposing really move us forward, but they don't deal with a lot of the tough issues that need to be grappled with, such as the environmental standards on reserve lands. We're exempt from environmental standards. We have to come up with them ourselves. We talk about an inherent right, and one of the fundamentals that Canada is looking at is how you can protect the environment for future generations. A $1,000 fine is good, but it's not enough.Senator Enverga: With the fines that you can levy now, do you think it will create conflict within the confines of the particular community, being that you're trying to manage your own self now? Do you think it will create conflict or confusion?Mr. Jules: No. My experience is that when you have the jurisdiction and you start creating fines, which is really saying, "You owe me this," that puts you in a very powerful position, but it also means, on the other hand, that you have to be fair. You have to have just processes to deal with them. I just simply go back to the fact that they are not adequate in terms of the dollar amount.Senator Enverga: May I have one more question, Mr. Chair? I want to talk to Ms. Lavallée about the consultation that MP Clarke has given you. Do you think it's comprehensive enough to be able to let you tell them what you need? Do you think it's enough, or do you need more questions to be asked about the consultation so that we can complete the whole package of the bill?Ms. Lavallée: As I said, these changes that are being proposed by Mr. Clarke's bill are not dissimilar to the governance act that was proposed in 2008. That was almost, I believe, a twoyear process, and there was extensive consultation on that, so this one was actually really easy for us. I participated in those community sessions right across Canada back then. What Mr. Clarke brought forth was very minor compared to what was being proposed under the old governance act.Senator Enverga: I understand that not everybody replied back to MP Clarke. Do you know why that would be? Do you have any idea what the hesitation would have been?Ms. Lavallée: Well, the reality is that our community is no different than general society. How many of us get flyers or questionnaires or surveys, either through the mail or on the phone, and we hang up? I know I do quite a few times, especially when it comes at suppertime. It's the same thing when you get it in the mail. You look at it and, oh, into the garbage it goes. I mean, some people are just like that, unfortunately.If they don't really understand initially what it's about, again, they tend to throw it on to a cupboard or into a drawer and say, “I'll look at it later.” That's where I took my responsibility as a leader to contact my chiefs and presidents across Canada and explain what it was, who Mr. Clarke was, what he was attempting to do and encouraged them to contact him or his office, and several of our PTOs did. I also made it an opportunity for him, as I said, to come to our annual general assembly and meet with our people coming in from our communities. I took the responsibility.Senator Enverga: Thank you for that. Senator Wallace: National Chief Lavallée, in your opening comments, you mentioned that the Congress of Aboriginal Peoples has represented the interests of offreserve, status and nonstatus Indians, Southern Inuit and Metis throughout the country, and is also a national voice for its affiliate organizations that advocate on behalf of Aboriginal peoples living offreserve.From the comments you've made, it would seem that the Congress of Aboriginal Peoples is supportive of Bill C428. It's my understanding that approximately 600,000 Aboriginal people live offreserve in Canada and would be represented through your organization. Is that at all accurate?Ms. Lavallée: Today, under the new statistics and figure used by the government itself, close to 700,000 Aboriginal people live offreserve across this country.Senator Wallace: All right.Ms. Lavallée: You don't have to belong to the Congress of Aboriginal Peoples to have your voice heard. I take questions, emails and telephone calls even from people who don't belong to the congress, and you can go on our website at any time. I'm on Twitter and Facebook and I can be contacted at any time.Senator Wallace: Would it be accurate to say that approximately 75 per cent of all Aboriginal peoples in Canada live offreserve? Would that be correct?Ms. Lavallée: Approximately.Senator Wallace: You said that as the national chief of the congress you're supportive of the bill. What could you say about the general level of support for this bill of your members of the Aboriginal peoples living offreserve?Ms. Lavallée: I would have to have a mandate by my governing boards, which are elected in each province by the people within those provinces, in order to be able to support something on behalf of the Congress of Aboriginal Peoples.Senator Wallace: Okay, thank you.Senator Ngo: This is the question for Chief Jules. Clause 2 of the bill proposes the elimination of the fine money returned to the Crown and so on. How does clause 9 of the Bill C428 impact upon the important role of the First Nations Tax Commission on section 83 of the bylaws?Mr. Jules: Well, clause 9 really doesn't impact us because section 83 is still an alive part of the Indian Act.Senator Ngo: Could you elaborate a little?Mr. Jules: Well, right now, it talks about the replacement of section 86 of the Indian Act, and it doesn't affect section 83, so section 83 is still a section of the Indian Act that requires the minister to look at a taxation bylaw and consult with the First Nations Tax Commission and then pass the bylaw.Senator Ngo: Thank you. Senator Raine: I just would ask you, Manny Jules, if you could clarify this. Right now, the publication of bylaws goes through the ministry. Is there an obligation to publish those bylaws now, or is this something new in the act?Mr. Jules: Right now, under the act, there's no requirement to publish the laws. Because it was repealed by the Statutory Instruments Act quite a while ago, it was up to each individual First Nation.But what happened as a result of that, when I worked on Bill 64, a provincial legislation that allowed us to occupy the tax field, we had to rely on the provincial gazette to notify municipalities and individuals that they were going to be impacted by a First Nations law, and that gave rise to my thought of why can't we have our own gazette. Why can't we have our own First Nations Gazette, and that was the genesis of ultimately having this institution to help First Nations promulgate their own laws.For the first time, as a result of this particular piece of legislation, there will be an option for First Nations to use the First Nations Gazette.Senator Raine: With respect to the proposed section 86, right now it says “on an Internet site, in the First Nations Gazette or in a newspaper that has general circulation.” I suppose that because you have the First Nations Gazette and there is no cost, it will become the preferred option for First Nations. Is that what you're anticipating?Mr. Jules: I'm hopeful of that.Senator Raine: It's kind of a nice way of doing it, then, because it does give them the other options, but with the gazette in place, it looks like it will move into that space.Mr. Jules: Yes.Senator Raine: Thank you. Senator Dyck: Senator Wallace was good enough to get the statistics on on and offreserve Aboriginal peoples in Canada. Of course, we all know most of them live offreserve, but doesn't this bill deal 99.99 per cent, if not completely, with onreserve residents?Ms. Lavallée: Yes, it does.Senator Dyck: So the offreserve component is really not relevant to the bill.Ms. Lavallée: Well, it is relevant, in particular, for those of us who are status living offreserve because we have a vested interest in the community if we so choose to exercise it.Mr. Jules: Without having laws promulgated through the First Nations Gazette, those individuals that live offreserve wouldn't be able to know what's going on on the reserve.Senator Dyck: Yes.Mr. Jules: As the national chief was saying, those individuals have every right to be able to be informed and give their consent to activities that take place on reserve lands.Senator Dyck: Yes, just for information purposes, yes. Okay, that's all.The Chair: Chief Jules, you've said that the requirement of the Minister of Aboriginal Affairs to report on developing new legislation to replace the Indian Act is a key element of the bill. I think you were here this morning when we had the Assembly of First Nations representatives say: No, it will just be about developing a report rather than on progress; it will exclude First Nations; the collaboration didn't work when section 67 of the Human Rights Act was being consulted on; it won't recognize Aboriginal and treaty rights; it isn't consistent with the Crown's duty to consult; nor is it consistent with the UN declaration.That is a strong forecast that this would be meaningless, but you've said it's a key element to the bill. Could you comment on those strongly negative views?Mr. Jules: Well, you have to put the minister in his proper context. He's a minister of the Crown sitting at the cabinet table of government. Parliament answers to all of the Canadian people, including First Nations, Inuit and others of indigenous ancestry. If you have a minister of the Crown giving an annual report about his progress made on a myriad of issues, I think that is an incredibly important part of the future.The Chair: Thank you. Again, thanks to both witnesses, and, colleagues, I think we've covered a lot of ground today.With that, this meeting is adjourned.(The committee adjourned.)